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June 2007, Page 28
Federal Law Issues in Obtaining Evidence Broad - Part One
By Linda Friedman Ramirez
There has been a significant growth in the 21st century for the need and use of foreign evidence in U.S. criminal courts as prosecutors target transnational crime.1 Increasingly, criminal defendants are foreign nationals who have been extradited to the United States after lengthy multinational investigations. In addition, Congress continues to enact criminal statutes with extraterritorial application to enable the prosecution of Americans and foreign nationals for a range of conduct occurring outside the United States.2
Despite the growing importance of transnational issues in domestic prosecutions, defense counsel must overcome significant disadvantages when seeking to obtain evidence abroad or raising extraterritorial due process claims. An American attorney abroad must be certain to comply with the evidence gathering laws of the foreign country, and failure to do so may be perceived as a violation of the country’s judicial sovereignty resulting in the attorney’s arrest or expulsion.
American courts do not have subpoena power over foreign nationals or evidence located abroad. The playing field, however, is not level. The government may be a party to a Mutual Legal Assistance Treaty (“MLAT”)3 with a foreign government, obligating the foreign government to provide assistance in obtaining evidence for a U.S. criminal case. The prosecution may also seek a court’s permission to suspend the statute of limitations due to delays in obtaining evidence,4 or otherwise delay trial.5 In contrast, courts have ruled that the inability to subpoena evidence from abroad does not result in a violation of a defendant’s due process rights, and have obligated the defendant to utilize “letters rogatory” (judicial requests for assistance) or witness depositions as a means of securing defense evidence. MLATs have specifically excluded an individual’s access to its processes. The 21st century, however, should provide the opportunity for the court to revisit these issues. Defense counsel, for example, may be in a position to argue that the government’s refusal to obtain evidence for the defendant, in the absence of any good faith reason, is a denial of the defendant’s Fifth and Sixth Amendment rights.
This article seeks to introduce defense attorneys to some of the case law relevant to these issues. Attorneys are encouraged to refer to other resources to be most effective in securing foreign evidence.6
Due Process Issues
A. Foreign national witnesses outside the United States are not subject to subpoena
A paradox that exists in a criminal prosecution relying on foreign evidence is the fact that an American court has no subpoena power over foreign national witnesses and evidence located outside the United States.7 Criminal subpoenas issued pursuant to Rule 17 of the Federal Rules of Criminal Procedure are served abroad pursuant to 28 U.S.C. § 1783. However, this statute provides for service abroad only on a national or resident of the United States who is in a foreign country.8 “A subpoena cannot be issued to a non-United States citizen outside the country, because the citizen does not owe an allegiance to the United States.”9
B. Defendant’s inability to subpoena a foreign witness does not implicate the Sixth Amendment
Courts have consistently held that a defendant’s inability to subpoena foreign witnesses does not implicate the Sixth Amendment.10 In United States v. Greco,11 the court ruled that the Sixth Amendment could give the right to compulsory process only where it is within the power of the federal government to provide it. “Otherwise any defendant could forestall trial simply by specifying that a certain person living where he could not be forced to come to this country was required as a witness in his favor.”12 As a result, the absence of the power to subpoena foreign witnesses does not bar criminal prosecution in the United States.13
The case of Angel John Zabaneh, a citizen of Belize who operated citrus and banana farms, is illustrative of the problem for defense practitioners. In 1985, Zabaneh was arrested in Guatemala City by the Drug Enforcement Administration and brought to the United States for prosecution. The case against Zabaneh had originated in 1981, when Texas narcotics agents arrested three individuals as they attempted to smuggle marijuana from Belize into Texas. One of the defendants agreed to cooperate and claimed that Zabaneh was his marijuana supplier. At the time of his trial, Zabaneh had subpoenas issued and served on 12 witnesses in Belize. Some witnesses were deposed in Belize.14 Only three witnesses appeared at trial. Zabaneh complained that although he was convicted pursuant to an extraterritorial application of federal drug laws, he was not afforded extraterritorial service of compulsory process in violation of his Sixth Amendment rights. The Fifth Circuit was unsympathetic. The court reaffirmed the principle that convictions are not unconstitutional under the Sixth Amendment even though U.S. courts lack power to subpoena witnesses — other than American citizens — from foreign countries.
This ruling (as applied to transnational crime) is overly simplistic, particularly in view of the evidence-gathering resources available to the government. The extreme to which this principle has been applied is demonstrated by court rulings that there is no due process violation, even if the witness would have been material to the defense.15
C. No violation of Fifth Amendment right to due process because of “venue”
A case worth noting is United States v. White,16 which involved an American woman charged with killing her husband and son while on the naval base at Okinawa. The defendant argued that the court’s exercise of jurisdiction over the case violated her Fifth Amendment right of due process because “virtually all of the witnesses in this case were located in Japan.”17
The court rejected any claim of a process violation in the absence of a finding that the unavailability of a material witness was attributable to unilateral government action. “The government cannot reasonably be held responsible for the inherent difficulty of locating and producing foreign witnesses, at least when the government has not concealed the witnesses or removed them from the United States.”18
The case of United States v. Sensi19 is also illustrative. Robert Sensi had been employed by Kuwaiti Airlines in the United States. Officials of the airline, which is owned by the Kuwaiti government, contacted the Federal Bureau of Investigation and reported that an internal audit had turned up evidence of embezzlement of funds from its Washington, D.C., sales office. Sensi was charged in the United States and later extradited from England. At the time of trial, his defense was that he had been authorized to open a bank account that contained the missing funds. On appeal, Sensi complained that the Kuwaiti government selectively made only certain witnesses available, and did not make available witnesses who would have corroborated his testimony that he was authorized to open the account. The court did not find a violation of the defendant’s Fifth or Sixth Amendment rights where the defendant argued that he was unable to secure the testimony of Kuwaiti witnesses in the United States. The court emphasized the fact that the defendant had not sought court permission to depose witnesses pursuant to Rule 15(a) of the Federal Rules of Criminal Procedure, nor had he asked the district court to issue letters rogatory addressed to a court in Kuwait seeking its assistance in gathering evidence from witnesses residing there.
In sum, a defendant’s generalized complaint that foreign witnesses are beyond the court’s subpoena power will be insufficient to establish a violation of the defendant’s Fifth and Sixth Amendment rights, particularly in the absence of any efforts by the defense to utilize the letters rogatory process.20
D. Due process violation if government prevents witness from testifying; good faith effort
A Fifth and Sixth Amendment claim is viable in those cases in which the government unreasonably denies a visa to a willing witness21 or has made a witness unavailable by physically removing the witness from the United States.22 In United States v. Fillipi, the defendant’s foreign witness would have willingly appeared at trial but was unable to obtain a visa for entry into the United States. The court found that the government’s deliberate failure to request the required Special Interest Parole directly caused the defendant to lose his only material witness in violation of his Sixth Amendment right to compulsory process and, derivatively, the right to due process protected by the Fifth Amendment.
Likewise, in United States v. Sanchez-Lima,23 the court found that a defendant’s right to present a defense had been violated due to the trial court’s refusal to admit videotaped statements of previously deported witnesses.24 One fact considered was the trial court’s denial of defendant’s motion for Rule 15 depositions. The reverse was also true in People v Sandoval,25 where the prosecution’s use of the prior testimony of a Mexican witness violated the defendant’s right to confrontation because the prosecution had failed to make a reasonable good faith effort to obtain the presence of the witness at trial through an MLAT with Mexico.
These cases are chinks in the jurisprudential armor that has given the government the upper hand in the prosecution of offenses involving foreign evidence. According to Michael Abbell, the author of various treatises on international criminal law:
MLATs provide the government with de facto compulsory process. Therefore, if DOJ were to refuse to use an MLAT to execute a Rule 15 court order authorizing a criminal defendant to obtain evidence from abroad, that denial would appear to violate the defendant’s rights under the Compulsory Process clause of the Sixth Amendment. That clause obligates the government to provide criminal defendants with the same means to obtain evidence from abroad as it affords itself through the MLATs — especially where that means is markedly superior to the alternative methods available to defendants.26
According to Abbell, the position of the Departments of Justice and State with respect to the use of MLATs by defendants in U.S. criminal cases is also in direct conflict with the requirements of the International Covenant on Civil and Political Rights to which the United States became a party in 1992. Article 14(3)(e) of the International Covenant provides:
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees in full equality:
* * * *
e. To examine or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.27
Letters Rogatory or Judicial Assistance in Obtaining Evidence
As discussed previously, courts consider that the defense has in its arsenal the “letter rogatory” for the purpose of obtaining needed evidence from abroad. A letter rogatory is a formal request from a court in one country to the appropriate judicial authorities in another country requesting compulsion of testimony, documentary or other evidence, or service of process. Letters rogatory are the medium through which one country, speaking through one of its courts, requests another country, acting through its own courts, to assist the administration of justice, and such a request is usually granted by reason of comity.28
The statutory provision that provides for a U.S. court’s request to a foreign court is found at 28 U.S.C. § 1781.
Transmittal of letter rogatory or request:
(a) The Department of State has power, directly, or through suitable channels —
(2) to receive a letter rogatory issued, or request made, by a tribunal in the United States, to transmit it to the foreign or international tribunal, officer, or agency to whom it is addressed, and to receive and return it after execution.
(b) This section does not preclude —
(2) the transmittal of a letter rogatory or request directly from a tribunal in the United States to the foreign or international tribunal, officer, or agency to whom it is addressed and its return in the same manner.
The Department of State on its Web site provides an explanation of the letters rogatory process, a sample letter rogatory,29 and relevant country-specific information.30 Any judicial requests or letters rogatory should be undertaken as soon as possible in view of the technical requirements in preparation of the requests, including translation and authentication. Care must be given that the letters rogatory are transmitted correctly. A letter rogatory can be transmitted to the court through the diplomatic channel with the assistance of the Department of State, or possibly through direct transmittal to the foreign tribunal or official agency to which it is addressed. However, counsel should first consult with the Department of State so as to avoid a failure to follow the proper procedure with regard to the specific country involved, which will result in either no action or delay.
In addition, it is advisable to consult and associate with foreign counsel in order to prepare the letters rogatory, as well as to arrange for foreign counsel to appear in the foreign court’s proceedings if permitted. The foreign country’s consulate in the United States might also be able to help convey and expedite the letters rogatory to the appropriate court in those cases in which they do not need to be transmitted through diplomatic channels.
In some countries that do not permit the taking of depositions, letters rogatory are the only method of obtaining evidence. In the absence of a specific bilateral or multilateral treaty, the foreign court’s execution of a request for judicial assistance is discretionary and based on comity between nations rather than obligation. Further, if accepted, the foreign court will execute the letters rogatory in accordance with any limitations in the laws of the country. For example, in the event judicial assistance is granted to compel testimony in written depositions, restrictions may be placed on the scope of the inquiry. In some instances, the foreign court might never respond to the letters rogatory.
Mutual Legal Assistance Treaties and Executive Agreements
Because foreign courts are not obligated to execute letters rogatory, the United States has negotiated and entered into bilateral MLATs or Executive Agreements. An MLAT between the United States and a foreign country may provide for the power to summon witnesses, compel the production of documents and other real evidence, and issue search warrants and serve process.31 A full list of MLATs currently in force is available from the Department of State.32
According to the Department of State, these MLATs “seek to improve the effectiveness of judicial assistance and to regularize and facilitate its procedures.”33 In contrast to letters rogatory, which must be transmitted through diplomatic channels, a request can be made by the Department of Justice to the country’s “Central Authority” responsible for handling MLAT requests.34 Cooperation by foreign authorities is a matter of legal obligation as opposed to comity between nations. “MLATs . . . have the desired quality of compulsion as they contractually obligate the two countries to provide to each other evidence and other forms of assistance needed in criminal cases while streamlining and enhancing the effectiveness of the process for obtaining needed evidence.”35
The specific language of the MLAT is not likely to provide recourse for an individual defendant, and may in fact specifically exclude such assistance. Criminal defense attorneys, civil libertarians, and the American Bar Association (“ABA”) have decried the Department of Justice’s failure to afford defendants access to evidence abroad through affirmative MLAT provisions.36
Counsel seeking evidence abroad should consult the provisions of any applicable MLAT, or such other conventions as the 1988 U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,37 to be informed as to its provisions and also to understand the mechanism by which the prosecution will likely seek to build its case. In some instances, it may also be possible for the defense to challenge the introduction of foreign evidence obtained by the prosecution in breach of an MLAT requirement.38
The Department of Justice continues to oppose the use of MLATs by the defense, and publicly takes the position that even if there is an MLAT between the United States and the country where evidence is located, the defense must utilize the letters rogatory process.39 Some courts have agreed. In United States v. Mejia,40 the appellate court did not find an error in the trial court’s refusal to require the government to request and obtain, on behalf of the defendant, recordings made of the Costa Rican trial of an alleged co-conspirator. The defendants argued that the prosecution clearly had the power to secure the trial tapes or transcripts from the Costa Rican government because it “was authorized by its Mutual Legal Assistance Treaty [with Costa Rica] to seek such information.”
The court, however, would not extend the government’s Rule 1641 obligation to encompass a requirement that the government seek such evidence through the MLAT, distinguishing the government’s authority “to seek” tapes or transcripts through a treaty from “the power to secure” them. The court called attention to the fact that although defense counsel had traveled to Costa Rica, he had failed to ask the district court to issue letters rogatory to the Costa Rican court to obtain any tapes or transcripts that may have existed.
There seems to be no dispute that the letters rogatory process is antiquated for the needs of contemporary litigation. The Department of State’s advisory on letters rogatory states: “Letters rogatory are a time-consuming, cumbersome process and should not be utilized unless there are no other options available.”42 The fact that there may be substantial delays in obtaining evidence from abroad is reflected in a provision suspending the statute of limitations while a government request for foreign evidence is pending.43
It is possible that the prosecution may agree to assist the defense in its efforts to obtain certain discovery through an MLAT. However, in a typical case, it is more likely that the prosecution will resist defense requests as a matter of policy, taking the position that the government has no obligation to obtain evidence that is not within its custody or control. However, if it appears the court will otherwise order the government to use the MLAT, it is possible that the Department of Justice may prefer to moot the defense request by voluntary cooperation rather than establishing any precedent by virtue of a court order.44
In a case in which defense counsel is already burdened with analyzing and investigating thousands of pages of discovery, audio tapes in a foreign language, and transcripts and translations, the court may have the incentive to order the government to use the MLAT in order to avoid any further delay in trial. Also, in the case of Criminal Justice Act counsel, it may be helpful to present to the court (for comparison) the cost of the letters rogatory process in terms of attorney time, translator fees, and cost of retaining foreign counsel if necessary.
If the evidence is in fact exculpatory evidence, a defendant will want to make sure that the request provides enough detail to enable the court to consider the materiality of the evidence. If necessary, this proffer should be presented to the court ex parte. In addition, in the appropriate case, the defendant could request that the foreign agency respond directly to the defendant, rather than to the Department of Justice. That said, counsel may still need to prepare letters rogatory if the court denies the defense request.
Obtaining Foreign Documents and Records
Depending on the form of evidence (e.g., personal versus official documents) and the country in question, some material may be readily available to defense counsel and the only issue may be authentication. However, in the event that counsel is unable to readily obtain evidence through unofficial means, counsel will want to have a strategy as to how to secure such documents and whether to seek the court’s assistance either through letters rogatory or by requesting the government’s assistance. In the case of a client extradited to the United States, there may be a provision or language in the relevant extradition treaty providing for the surrender to the prosecution of documents relating to the offense.
To the extent that counsel wants to pursue evidence gathering without disclosure to the government, it is important to remember that national laws on obtaining evidence vary widely. Therefore, counsel must first acquaint themselves with the specific requirements of the country from which evidence is sought. Unprepared forays into another nation’s jurisdiction for the purpose of evidence gathering can be legally disastrous and personally endangering.
A good starting point is the information provided by the Department of State.45 Defense attorneys are encouraged to consult with lawyers in the country from which evidence is sought, or in the alternative, speak with law professors or foreign attorneys serving as foreign law consultants practicing in the United States. Ultimately, it may be necessary to seek the government’s assistance in obtaining certain records — through the MLAT or otherwise — as such records may otherwise be unavailable.
Admission of Foreign Documents and Records
Defense counsel should always keep in mind that there are two sets of parallel requirements that must be met when obtaining any form of evidence abroad: domestic rules of procedure and the applicable laws of the foreign country where the evidence is located. During the process of the defense investigation, it is therefore prudent to refer to the provisions in federal law that will eventually authorize the admission of foreign records. While the rules and statutes appear to facilitate the admission of certain records, there is typically a requirement that a certification accompany the document.
A. Foreign public documents
Foreign public records are self-authenticating, but still require a certification that the record is genuine.
Rule 902 provides in relevant part:
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
* * * *
(3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.
Fed. R. Evid. 902(3).
In United States v. Yousef,46 the court agreed at a preliminary hearing that a foreign public record be excluded due to the government’s failure to include the required certification or an explanation as to why the certification was not provided. However, defense counsel may want to assume that the government will be able to cure any such defect at the time of trial. For example, in Yousef, the court did not rule out the possibility that the government could provide the certification at a later time.47
It should be pointed out that the Hague Convention Abolishing the Requirement of Legislation for Foreign Public Documents simplifies the process for parties to the Convention. The requirement of a final certification of diplomatic officers of the United States is abolished and replaced with a model apostille, which is to be issued by officials of the country where the records are located.
B. Records requiring authentication
The foreign documents provision in 18 U.S.C. § 3491 provides:
Any book, paper, statement, record, account, writing, or other document — which is not in the United States shall, when duly certified as provided in section 3494 of this title [18 USCS § 3494], be admissible in evidence in any criminal action or proceeding in any court of the United States if the court shall find, from all the testimony taken with respect to such foreign document pursuant to a commission executed under section 3492 of this title [18 USCS § 3492], that such document . . . satisfies the authentication requirements of the Federal Rules of Evidence, unless in the event that the genuineness of such document is denied, any party to such criminal action or proceeding making such denial shall establish to the satisfaction of the court that such document is not genuine.
The process by which documents may be authenticated through written or oral interrogatories is set out in 18 U.S.C. § 3492 and 18 U.S.C. § 3493. Also, 18 U.S.C. § 3494 provides for the consular official to certify the genuineness of the record.
C. Foreign business records
The admission of foreign business records, accompanied by a foreign certification, is provided for pursuant to 18 U.S.C. § 350548:
(a)(1) In a criminal proceeding in a court of the United States, a foreign record of regularly conducted activity, or a copy of such record, shall not be excluded by the hearsay rule if a foreign certification attests that:
(A) such record was made at, or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters;
(B) such record was kept in the course of a regularly conducted business activity;
(C) the business activity made such a record as a regular practice; and
(D) if such record is not the original, such record is a duplicate of the original;
unless the source of the information or the method or circumstances of its preparation indicate lack of trustworthiness.
The statute at 18 U.S.C. § 3505(c)(2) defines the “foreign certification” as:
a written declaration made and signed in a foreign country by the custodian of a foreign record of regularly conducted activity or another qualified person that, if falsely made, would subject the maker to criminal penalty under the laws of that country.
The notice must be given at the time of arraignment or as soon after as is practicable, and the party opposing admission of the evidence must file a motion in opposition.49
Prior to the Supreme Court’s decision in Crawford v. Washington,50 courts have considered and overruled objections to the admission of foreign business records pursuant to 18 U.S.C. § 3505 on confrontation grounds.51 A Ninth Circuit case, United States v. Miller,52 made specific reference to the attestations that were made in Switzerland under penalty of perjury, certifying the authenticity and accuracy of the records. The court did not find a violation of the Sixth Amendment, relying on Ohio v. Roberts and the firmly rooted hearsay exception for business records.
In United States v. Hing Shair Chan,53 Judge Weinstein denied an untimely objection to foreign business records. The court, however, conducted its own investigation54 of the certification during the “hurly-burly” of trial to ascertain the significance of the sworn declaration and the penalty of perjury in Hong Kong. The court relied on the principle that, in the absence of any argument to the contrary, the court may assume that the foreign law is the same as forum law on the point, and ultimately found the records reliable.55
However, Crawford called the Roberts framework unpredictable and “incapable of protecting the core testimonial statements that the Sixth Amendment was meant to exclude.” Therefore, such pre-Crawford precedent is open to challenge, and defense counsel should be prepared to oppose the admission of foreign records on the basis that the certification of the sponsoring witness is testimonial.
The Ninth Circuit avoided a definitive ruling on this issue in United States v Hagege,56 on the basis that the foreign business records were non-testimonial, and therefore not subject to the Crawford requirement of confrontation. The court noted that the certifications attesting to the authenticity of the business records were not admitted into evidence, and therefore, the court did not reach the Crawford issue. However, the court in Hagege failed to discuss the fact that the business records are only admissible by virtue of the certification, which is a written declaration,57 and therefore a testimonial statement. It is very likely the court did not want to take the major jurisprudential step of excluding foreign business records due to the absence of in-court testimony by the records custodian.
It is conceivable that the court will try to avoid the necessity of excluding such evidence by requiring the defendant to utilize a letter rogatory or Rule 15 deposition in order to challenge the admission of the records, on the basis that the source of information or the method or circumstances of preparation indicate lack of trustworthiness.58
For example, in United States v. Korogodsky,59 the court denied an objection to the admission of foreign records based on confrontation grounds. In its pretrial order, however, the court ruled that “a defendant is entitled to a letter rogatory which questions a foreign witness who has submitted a § 3505 certification, but only with respect to the reliability of the relevant document.” Therefore, defense counsel should anticipate that the prosecution may respond that there is no confrontation problem, since the defendant can request a Rule 15 deposition for the author of the certification. Such a request, however, puts the onus on the defendant to show that the author or sponsoring witness is unavailable to testify in the United States, which might not in fact be correct. The defense should persist in its objection that: (1) the records are not self-authenticating, and (2) any testimony in a written declaration regarding the reliability of the records violates the confrontation clause.
In contrast, a defendant who seeks to offer foreign documentary evidence will not face confrontation-based objections. The defendant, however, will still need to fulfill the Federal Rules of Evidence or the statute’s notice and technical requirements.
Notes
1. http://www.usdoj.gov/atr/public/ speeches/207226.htm.
2. See 18 U.S.C. §§ 90, 1837; 18 U.S.C. § 1119; 18 U.S.C. § 2244(a)(3); 18 U.S.C. § 2332; and 18 U.S.C. § 2423.
3. See the discussion, infra, on MLATs and executive agreements.
4. See 18 U.S.C. § 3292.
5. See 18 U.S.C. § 3161(h)(9).
6. This author encourages defense counsel to consult Michael Abbell, Obtaining Evidence Abroad in Criminal Cases (2002).
7. Mancusi v. Stubbs, 408 U.S. 204, 212-213 (1972); United States v. Filippi, 918 F.2d 244 (1st Cir. 1990).
8. “A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign country.”
9. United States v. Padilla, 869 F.2d 372 (8th Cir. 1989).
10. These cases generally rely on jurisprudence predating the advent of MLATs. See the discussion of MLATs infra.
11. 298 F.2d 247 (2d Cir. 1962).
12. It should be noted that in the Greco case, the defendant had never identified the Canadian witnesses necessary for his defense.
13. United States v. Zabaneh, 837 F.2d at 1259-60 (5th Cir. 1988), citing United States v. Greco, 298 F.2d 247, 251 (2d Cir.), cert. denied, 369 U.S. 820, 7 L. Ed. 2d 785, 82 S. Ct. 831 (1962).
14. The prosecution argued in closing that five of the deposed witnesses had given implausible reasons for not appearing in court, and therefore were less worthy of belief. Zabaneh had failed to object and the court did not consider it plain error. 837 F.2d 1260 (5th Cir. 1988).
15. See also United States v. Korogodsky, 4 F. Supp. 2d 262 (S.D.N.Y. 1998). (The Sixth Amendment provides a right to compulsory process only if the desired witness is within the court’s subpoena power, even if that witness could provide testimony that is material and favorable to the defendant.).
16. United States v. White, 51 F. Supp. 2d 1008 (E.D. Calif. 1997).
17. The defendant also challenged the constitutionality of 18 U.S.C. § 1119, which provides that “[a] person who, being a national of the United States, kills . . . a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 18 U.S.C.S. §§ 1111, 1112, and 1113.”
18. White at 1012, citing United States v. Layton, 855 F.2d 1388, 1408 (9th Cir. 1988), cert. denied 489 U.S. 1046, 103 L. Ed. 2d 244, 109 S. Ct. 1178 (1989).
19. 879 F.2d 888, 899 (D.C. Cir. 1989).
20. See also United States v. Yousef, 327 F.3d 56, 112-13 (2d Cir. 2003), the court did not find defendant’s inability to obtain a videotape a violation of due process, and noted that the defendant never asked the court to issue a letter rogatory.
21. United States v. Fillipi, 918 F.2d 244 (1st Cir. 1990).
22. United States v. Sanchez-Lima, 161 F.3d 545 (9th Cir. 1998).
23. 161 F.3d 545 (9th Cir. 1998), but see United States v. Gonzalez, 617 F.2d 1358 (9th Cir. 1980) (unless a defendant “could conceivably” benefit from the testimony of a missing witness’s testimony, unless he or she is prejudiced by that person’s absence, there is no denial of due process warranting dismissal or reversal).
24. Id.
25. 87 Cal. App. 4th 1425, 1443-44 (Cal. Ct. App. 2001).
26. Michael Abbell, DOJ Renews Assault on Defendant’s Right to Use Treaties to Obtain Evidence From Abroad, 21 The Champion 20 (1997).
27. Id.
28. The Signe, 37 F. Supp. 819, 820 (E.D. La. 1941).
29. http://travel.state.gov/law/info/ judicial/judicial_683.html.
30. See http://travel.state.gov/law/ info/ judicial/judicial_688.html and http:// travel.state.gov/law/info/judicial/judicial_2510.html.
31. http://travel.state.gov/law/info/ judcial/judicial_690.html; see United States v. Vilar, 2007 U.S. Dist. LEXIS 26993, April 4, 2007, (S.D.N.Y.) (motion to suppress search in the United Kingdom; prosecutors conceded that in the absence of an MLAT between the United Kingdom and the United States, United Kingdom law enforcement would not have sought a warrant to search and seize records).
32. http://travel.state.gov/law/info/ judicial/judicial_690.html.
33. http://travel.state.gov/law/info/ judcial/judicial_690.html.
34. For a discussion of the mechanics of such cooperation, see United States v. Vilar, 2007 U.S. Dist. LEXIS 26993, April 4, 2007 (S.D.N.Y.).
35. In re Commissioner, 325 F.3d 1287 (11th Cir. 2003).
36. David Whedbee, The Faint Shadow of the Sixth Amendment: Substantial Imbalance in Evidence-Gathering Capacity Abroad Under the U.S.-P.R.C. Mutual Legal Assistance Agreement in Criminal Matters, 12 Pac. Rim L. & Pol’y 561 (March 2003); Michael Abbell, DOJ Renews Assault on Defendant’s Right to Use Treaties to Obtain Evidence From Abroad, 21 The Champion 20 (1997) (At its 1989 annual meeting, the ABA House of Delegates, despite the vocal opposition of the Departments of Justice and State, unanimously passed a resolution recommending that all future MLATs expressly permit a criminal defendant to use such treaties to obtain evidence from abroad where the trial court determined that the obtaining of such evidence was necessary to the defense of the case.).
37. See Article 7, U.N. Convention Against Illict Traffic in Narcotic Drugs and Psychotropic Substances.
38. United States v. Garcia, 37 F.3d 1359, 1366-67 (9th Cir. 1994), cert. denied, 514 U.S. 1067 (1995) (defendant was permitted to attempt to enforce use restrictions on evidence provided by Switzerland to the United States under the Swiss MLAT Treaty); but see United States v. Amador Galván, 215 F.3d 1334 (9th Cir. 2000) (holding that defendant has no individual rights under Mexico-United States Mutual Legal Assistance Treaty).
39. http://travel.state.gov/law/info/ judicial/judicial_690.htm; http://foia.state. gov/masterdocs/07fam/07m0960.pdf; but see United States v. Des Marteau, 162 F.R.D. 364, 370-72 (M.D. Fla. 1995) (The United States represented that, should the court order the depositions requested by defendants, the most expedient method of facilitating them would be through an existing MLAT between the United States and Canada, as an alternative to the court issuing letters rogatory.).
40. 448 F.3d 436 (D.C. Cir. 2006); see also United States v. Rosen, 2007 U.S. Dist. LEXIS 10108 (E.D. Va. 2007) (court would not require prosecution to enforce U.S.-Israel Treaty to compel testimony of Israeli government witnesses; right to compulsory process does not extend to forms of process that require the cooperation of the Executive Branch or foreign courts).
41. Fed. R. Crim. P. 16(a)(1)(E).
42. http://travel.state.gov/law/info/ judicial/judicial_683.html.
43. 18 U.S.C. § 3292.
44. According to Michael Abbell, “in every known instance in which a trial court indicated it intended to issue a Rule 15 order directing the government to make an MLAT request on behalf of a defendant in a criminal case, the Department of Justice has ‘volunteered’ to make the request.” See Michael Abbell, DOJ Renews Assault on Defendant’s Right to Use Treaties to Obtain Evidence From Abroad, 21 The Champion 20 (1997).
45. http://travel.state.gov/law/info/ judicial/judicial_702.html.
46. 175 F.R.D. 192 (S.D.N.Y. 1997).
47. Id. “Upon presentation by the government of either a valid certification or an explanation of facts supporting a finding of good cause for failure to obtain such a certification, the admissibility of this evidence will be reconsidered.”
48. “[18 U.S.C. § 3505] … one section of the Comprehensive Crime Control Act of 1984, which addresses both the hearsay and the authentication questions. The purpose of the law is to create “a simple, inexpensive substitute for the cumbersome and expensive procedures presently required for the admission of foreign business records.” H. Rep. No. 907, 98th Cong., 2d Sess. 3, reprinted in 1984 U.S. Code Cong. & Admin. News 3578, 3580. Section 3505(a)(1) overcomes the hearsay problem by providing for a certification procedure.
49. 18 U.S.C. § 3505(b). At the arraignment or as soon after the arraignment as practicable, a party intending to offer in evidence under this section a foreign record of regularly conducted activity shall provide written notice of that intention to each other party. A motion opposing admission in evidence of such record shall be made by the opposing party and determined by the court before trial. Failure by a party to file such motion before trial shall constitute a waiver of objection to such record or duplicate, but the court for cause shown may grant relief from the waiver.
50. 124 U.S. 1354 (2004).
51. United States v. Ross, 33 F.3d 1507, 1515-1517 (11th Cir. 1994).
52. United States v. Miller, 830 F.2d 1077 (9th Cir. 1987).
53. 680 F. Supp 521, 522-26 (E.D.N.Y. 1988).
54. “The court may take judicial notice of foreign law and legal terms under Rule 26.1 of the Federal Rules of Criminal Procedure, considering any relevant source whether or not submitted by a party. Accordingly, at the court’s direction, a law clerk telephoned the Hong Kong Trade Office, affiliated with the Consulate of the United Kingdom in New York. The Hong Kong Trade Office reported that the Commissioner of Oaths is a ‘member of the judiciary’ with full judicial power to certify declarations, somewhat like a magistrate and with significantly greater authority than a notary public. The law clerk reported this information to the court in camera and ex parte. These communications were reported to counsel after the event. According to the English Law Dictionary 185 (1986), a ‘commissioner of oaths’ is a ‘solicitor appointed by the Lord Chancellor to administer affidavits which will be used in court.’ Jowitt’s Dictionary of English Law 1268-69 (2nd ed. 1977) notes that oaths administered by a Commissioner of Oaths are subject to the Perjury Act of 1911. Such a sworn statement fulfills the demands of § 3505(c)(2) and is itself an indicator of the reliability of the statement.“ Hing Shair Chan at 534.
55. Id.
56. 437 F.3d 943 (9th. Cir. 2006); see also United States v. Jawara, 462 F.3d 1173 (9th Cir. 2006) (defendant challenged admission based on sufficiency of certification; no discussion of confrontation; court admitted Gambian school records).
57. 18 U.S.C. § 3505(c)(2).
58. 18 U.S.C. § 3505(a)(1).
59. 4 F. Supp. 2d 262 (S.D.N.Y. 1998).
Part 2 of this article will discuss witness entry to the United States, Rule 15 depositions, and testimony by video-conference. |
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